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Hercules, Inc. v. EPA

Citation: 8 ELR 20811
No. No. 77-1248, 598 F.2d 91/12 ERC 1376/(D.C. Cir., 11/03/1978)

The court upholds regulations issued by the Environmental Protection Agency (EPA) under § 307 of the 1972 Federal Water Pollution Control Act which severely limit discharges into the nation's waterways of two toxic substances: toxaphene and endrin. The court determines as a preliminary matter that Congress did not intend the amendments to § 307 made by the Clean Water Act of 1977 to affect previously-issued regulations then awaiting judicial review. A remand for new proceedings responsive to the 1977 amendments is therefore not required. Noting that § 307 authorizes EPA to set standards to provide an "ample margin of safety," the court finds that the Agency acted properly in adopting a categorical approach which based the toxaphene and endrin limitations on the tolerances of the most sensitive aquatic species tested rather than limiting its study to aquatic life found in the receiving waters. EPA's determination of the effluent discharge and mass limitation standards for toxaphene was supported by substantial evidence and was within the zone of reasonableness. The court rejects the argument that EPA illegally failed to consider the feasibility of achieving the standard set for endrin, ruling that § 307(a) does not require the agency to consider economic and technological factors. That EPA did in fact consider evidence relating to feasibility after calculating the standard does not necessitate a remand because this evidence did not affect the Agency's conclusions. In addition, EPA's decision to employ a mixing zone factor of 375 was within the zone of reasonableness and thus must be sustained. The court rejects the contention that the discharge limitations must be overturned because they were based on impermissible ex parte submissions and contacts. The establishment of toxic pollutant standards under § 307(a) constitutes rule making rather than adjudication, and thus the requirements of § 554 of the Administrative Procedure Act do not apply. The court finds that the contacts which occurred between the EPA judicial officer and the Agency staff concerned only assistance in understanding the record and did not result in consideration by the officer of evidence outside the record. In addition, this court's later decision in Home Box Office v. FCC proscribing such contacts is not to be applied retroactively. Moreover, the particular context of the case made rapid action by EPA necessary to carry out congressional mandates for the protection of public health and the environment. Nonetheless, the court voices fear that the post-hearing communication between the presiding judicial officer and Agency staff legal advocates gives rise to an appearance of unfairness, and it suggests that amendatory legislation prohibiting such contacts in formal rule making may be advisable. Finally, the court rules that the mandate of statutory deadlines as well as a later consent decree amply justify the Administrator's failure to file a tentative decision, and the court upholds EPA's requirement for swift compliance with the newly set discharge standards.

Counsel for Petitioners
Roberts B. Owen, Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Charles A. O'Connor, III, Kenneth W. Weinstein, Joe G. Hollingsworth
Sellers, Conner & Cuneo
1625 K St. NW, Washington DC 20006
(202) 452-7500

Counsel for Respondent
Ridgeway M. Hall, Jr. Associate General Counsel; Alan Eckert, Lorraine Chang
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

James W. Moorman, Ass't Attorney General; William L. Want
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Before BAZELON, TAMM and ROBINSON, Circuit Judges.